The 56-day Rule – CA upholds agreed extension of time

On 5 February this year, I summarised the judgment of Holgate J in Gluck v SSHCLG - a challenge to an appeal decision in circumstances where there had been a purported extension of time for determination of the prior approval application, which the LPA alleged had been agreed with the applicant. That decision departed from the previous ruling in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), in which a Deputy Judge had been persuaded that Article 7 of the GPDO did not permit an extension of the 56-day period in the case of a prior approval application made under Part 3 of the Second Schedule to the GPDO.

This issue has now come before the Court of Appeal, in Gluck v SSHCLG [2020] EWCA Civ 1756, which has upheld the judgment at first instance on both the points that were in contention in this case. The importance of this Court of Appeal decision is that it puts this issue beyond doubt, and resolves any lingering doubt that there might have been over any potential incompatibility of the High Court judgment in this case with the previous judgment in Warren Farm. I don’t need to rehearse the issues again here, as the Court of Appeal has endorsed the decison at first instance on both of the points that were in contention between the parties.

The position, as now confirmed by the Court of Appeal, is that:

(1) The wording of Article 7 of the GPDO, after setting a time limit for the determination of a prior approval application, allows a prior approval application under the GPDO be determined in all cases within such longer period as may be agreed by the applicant and the authority in writing.

(2) The phrase “agreed by the applicant and the authority in writing” does not require any formal document. Agreement can be sufficiently evidenced by an exchange of emails. The only requirement is that there must be sufficient evidence in writing (which may be in electronic form) to show that one party had proposed an extension of time and that the other party had assented to that proposal. The evidence of such agreement in this case was clear beyond doubt.

Mr Gluck’s appeal against the judgment of the High Court was accordingly dismissed. Time had been duly extended in the manner provided by Article 7, and so Mr Gluck was not entitled to proceed with his development in default of the determination of his prior approval application within the 56-day period.

© MARTIN H GOODALL

Matters arising – More Q&A on the UCO changes

In our webinar at the end of November, I said I would try to answer some of the points we could not cover in the time available in the Q&A session at the end of the webinar.

Unsurprisingly, there is still some confusion over the effect of the transitional provisions, although I did my best to explain these, both in the Supplement to my book and in our webinar. I have selected a few of the questions that were troubling some of our delegates.

If you have a use which now falls under Class E, will that use then benefit from all permitted development changes of uses of all previous use classes which are now contained within Class E?. [Another question put it this way: I am unclear as to the Prior approval position with respect to changes from the new Use Class E (commercial) to C3 (residential) during the period to 31.8.21.]

The answer to the first of these questions is a definite ‘No’ (at least for the time being). The transitional provisions make it clear that the development permitted by the GPDO is confined to the Use Classes as they existed prior to 1 September 2020. So any PD rights in relation to an existing use are confined to the narrower classes of use specified in the GPDO. The government has, however, consulted on a possible widening of PD rights for uses in Class E, including residential conversion of a wide range of commercial premises (partially covered at present by Classes M, N and O in Part 3 plus, formerly, Class PA). This new PD right will probably not take effect until August of next year, and its precise terms remain to be settled.

This further question was then posed: Provided there is no Article 4 restriction, would it be possible to change a B8 to B1 (less than 500sqm) under GPDO so that, once implemented, the unit would then be open Class E?

In contrast to the previous answer, the answer in this case is ‘Yes’. Once a planning unit is in use in a particular Use Class (in this case, Class E), section 55(2)(f) then allows a change of use to any other use within that same use class. However, caution suggests that the use permitted by Class I(a) in Part 3 should be more than merely nominal before the further change of use that is allowed under section 55(2)(f) takes place. The rule established by Kwik Save Discount Stores v SSW might also apply, by analogy, to a change of use under section 55(2)(f). I would suggest that the use permitted by Class I(a) should be confined to a use that remains within the scope of the former Class B1 for more than six months at the very least (and preferably for a year or more) before a further change of use within Class E is then made in reliance on section 55(2)(f).

The next question was: If a planning condition prevented change to “any other use within Class D1” how would this be applied/understood, as D1 uses are now all categorised in different places?

Conditions that limit the scope of a use authorised by a planning permission will remain in full force and effect (and not only during the ‘material period’, but indefinitely). Such conditions are unaffected by the changes to the UCO. So if a PP authorised a specified use that previously fell within Use Class D1, but contained a condition that prevented a change of use to “any other use within Class D1”, it will continue to prevent a change to any other use that formerly fell within that Use Class. So, (just to take one example) if the authorised use was covered by Class D1(a) (now E(e)), the condition quoted would still prevent its use within Class E(f) (formerly D1(b)). Similarly, if the authorised use was covered by Class D1(c) (now F.1(a), this condition would still prevent its use within Class F.1(b) (formerly D1(d)), F.1(c) (formerly D1(e)), F.1(d) (formerly D1(f)), F.1(e) (formerly D1(g)), F.1(f) (formerly D1(h)) or F.1(g) (formerly D.1(i)). The quoted condition would not, however, prevent a use within any other category in the Use Class into which the authorised use now falls which did not fall within the previous Class D1.

I referred above to the Rule in Kwik Save, and one delegate asked: “With regard to the Kwik Save “colourful implementation” point, you mentioned the relevance of that for uses using PD rights from one use class to another. Does it apply to changes within the same (and now much wider) Use Class?”

Kwik Save itself dealt solely with a change of use that was formerly permitted under Part 3 of the Second Schedule to the GPDO from a specified sui generis use to a use within Class A1, and the rule clearly applies to other PD under the GPDO. I have expressed the opinion, here and elsewhere, that the rule in Kwik Save may also apply “by analogy” to changes of use within the same Use Class under section 55(2)(f). I am not aware of any judicial authority that would expressly support this proposition, but I strongly suspect that if this were to be disputed, the courts might well take the same view as they did in Kwik Save and for the same reasons. I can’t guarantee that I am right about this; it is simply my professional view, based on instinct and experience.

The questioner went on to ask whether implementation is bound by the description of development (which begs the question, they suggest, whether developers ought to apply for permission by reference to a Use Class for an use class rather than a particular use).

It is true that the initial use of a development is strictly limited by its description in the planning permission. (See Wilson v West Sussex CC and East Suffolk CC v SSE.) But a change of use within the same Use Class can then be made under section 55(2)(f), although here too I have always taken the view that the Rule in Kwik Save may well apply to the timing of such a subsequent change of use (a point I have made in the book).

On the second point, I often used to think that it might be advisable to frame a planning application by reference to a Use Class, rather than a specific use, but in practice very few planning officers would be prepared to accept this approach, and they will usually insist on a more precise description of the proposed development. In any event, permissions are frequently conditioned to limit changes of use in one way or another. The government has indicated that such conditions ought not to be imposed on new Class E uses, but I bet many LPAs simply won’t be able to resist the temptation to do so. In that event, a plethora of section 73 applications can be expected, followed by appeals if these are refused. LPAs may well find themselves at risk of an award of costs against them in such cases.

I will deal with some further questions in a future post.

© MARTIN H GOODALL

UCO and GPDO – Some joined-up thinking

It was obvious to many of us that the changes to the Use Classes Order that came into effect on 1 September were only part of a more comprehensive suite of changes that would necessarily embrace the GPDO as well, in order to maintain consistency in the overall scheme of delegated legislation. Left to their own devices, MHCLG would no doubt have co-ordinated the changes to the UCO with relevant changes to the GPDO in a single set of amending regulations, which would probably have emerged in the course of 2021. It seems, however, that the Ministry came under insistent pressure from 10 Downing Street (lately under the management of D.Cunning-Plans, Esq.) to get something out immediately, in order to demonstrate the government’s dynamic determination [sic] to shake up the planning system. The immediate result, in the form of the recent changes to the UCO, bore all the hallmarks of a rushed job, and I have pointed out both in this blog and, in more detail, in the Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts some of the resulting anomalies and potential problems which the UCO changes have created.

The unfortunate decoupling of the UCO changes from co-ordinated amendments to the GPDO necessitated the rather clunky transitional provisions in the recent UCO amendment regulations, which preserve the old Use Classes for the purposes of permitted development under the GPDO until the end of next July, by which time the MHCLG no doubt hopes to be able to amend that Order, so that the UCO and the GPDO are once more brought into alignment.

Sooner, perhaps, than some may have expected, MHCLG has now published a consultation document outlining their initial proposals for changes to the GPDO. The consultation period has been nicely timed to start in the run-up to Christmas and to straddle the Christmas and New Year break, with a deadline for responses on 28 January. That ought to cut down somewhat on the stroppy reaction that can be expected from various planning professionals, and especially from planning officers in LPAs, whose dismay at the UCO changes will now be intensified by further blows in the GPDO to their fading hopes of preserving the vitality and viability of their town centres.

The scope of the proposed changes will occasion no great surprise, as they were perhaps predictable from the general thrust of the recent UCO amendments, particularly the creation of the very wide Commercial, Business and Service use class (Class E). It is now therefore proposed that the PD right for the residential conversion of certain commercial premises (originally from offices within Use Class B1(a) – under Class O, and then also from A1 shops, A2 financial and professional services, A5 hot food take-aways, Betting Offices, Pay day loan shops, and Launderettes – all under Class M, as well as from an Amusement Arcade or Casino – under Class N) should be expanded to enable the residential conversion of any Commercial, Business and Service premises now in Class E. [The consultation paper does not mention the existing and new sui generis uses that currently benefit from this PD right under Classes M and N, but these will presumably still be included in the new expanded PD right for residential conversions.]

It is not proposed that there should be any size limit on the buildings that can benefit from this PD right, which would allow for either the whole building or part of the building to be converted to residential use but, in order to qualify for this PD right, the premises must have been in use within Use Class E on 1 September 2020. As the consultation document points out, Use Class E applies everywhere in all cases, not just on the high street or in town centres. However, the disqualifications that currently apply would continue to apply in National Parks and AONBs, and World Heritage Sites, as well as to buildings in SSSIs, or which are listed buildings or within their curtilage, sites that are (or contain) scheduled monuments, or are in safety hazard areas or military explosives storage areas, as well as sites subject to an agricultural tenancy. On the other hand, this PD right would not be excluded (as it has been up to now) in conservation areas, although there would be a requirement in a conservation area for prior approval of the impact of the loss of the ground floor use to residential.

There would in any event be a widened range of matters requiring prior approval. In addition to flooding, transport impacts and contamination, these matters would include the impacts of noise from existing commercial premises on the intended occupiers of the development, the provision of adequate natural light in all habitable rooms, fire safety (to ensure consideration and plans to mitigate risk to residents from fire) and the impact on the intended occupiers from the introduction of residential use in an area the LPA considers is important for heavy industry and waste management. [The general prohibition on developments that do not comply with nationally prescribed space standards will also apply to the new PD right in any event.]

I don’t propose to comment on the merits or demerits of the proposals outlined above, but readers will recognise the potentially wide implications and possible impact of these changes in policy terms. If you feel strongly about this, then I recommend that you send in a robustly worded response to this consultation. You can draft it over the quiet Christmas holiday that we’re all going to have, instead of playing Monopoly or Cluedo (which Chris Whitty says you shouldn’t be doing anyway!).

So far as Part 3 of the Second Schedule is concerned, the consultation paper addresses only the residential conversion of Commercial, Business and Service premises now in Class E (previously covered, in part, by Classes M, N and O). However, it occurs to me that this change would also have the effect of reviving the lapsed Class PA, which allowed the residential conversion of light industrial premises. There will have to be other consequential changes to the GPDO to bring various PD rights into line with the new and revised Use Classes, but presumably those other changes would not involve the significant widening of those PD rights.

© MARTIN H GOODALL

Keystone Law - Law Firm of the Year

Although this blog is entirely independent and free-standing, I am nevertheless proud of my association with Keystone Law, which has proved to be one of the most dynamic law firms in the country.

So I was very pleased when Keystone Law was recently named as “Law Firm of the Year” at The Lawyer Awards 2020.

It is the first time in the award’s 26-year history that the top prize has been handed to an innovative law firm of this type, having previously been won by some of the UK’s biggest firms including Clifford Chance, Pinsent Masons and Mishcon de Reya.

Keystone Law was highlighted as this year’s big winner for being a pioneer in the legal sector, which since its launch in 2002 has been on an upward growth trajectory, attracting heavyweight lawyers from traditional law firms, all the while providing complete autonomy and freedom. The judges commented that during the coronavirus pandemic “Keystone’s model has been vindicated in spades” and thanks to its innovative use of technology and modern working practices “the firm is lightyears ahead” in enabling lawyers to work remotely and provide high-quality service to clients.

The firm was also praised for its achievements over the last 12 months, which included launching operations in the Middle East, continuing its strong recruitment of high calibre lawyers from top UK law firms and achieving solid financial results, growing its revenue to £49.6 million in 2019.

The accolade follows a rigorous judging process, which included analysing The Lawyer’s proprietary data and market insight alongside input from a judging panel of industry experts.

James Knight, our CEO and founder said:

“It is a huge honour to win this coveted award. When we founded the firm, we knew we wanted to do things differently and completely rethink the law firm model. Thanks to the hard work and dedication of the team at Keystone we were able to achieve that aim and we continue to push the boundaries to provide a first-rate alternative to traditional firms. To win this award within less than 20 years of the firm’s inception is an outstanding achievement and I would like to thank everyone who has supported our journey from start-up to tech-enabled Top 100 law firm, particularly our clients and the excellent lawyers who took the jump into new law.”

The Lawyer Awards are a much sought-after accolade, singling out the leading legal teams and transactions across the legal profession and are widely recognised as the legal industry’s leading awards.

So, onwards and upwards.

MARTIN H GOODALL.

USE OF LAND book – Publication imminent

The Revised Edition of The Essential Guide to the Use of Land and Buildings under the Planning Acts and Supplement is about to go to press.

The Revised Edition (with Supplement) not only flags up the old and new Use Classes in the original text, but also brings various other legislative references up to date, and contains new material and re-cast or re-written text.

As I wrote the other day, I would strongly recommend readers to order the Revised Edition of the book, with the Supplement bound in, because the Revised Edition provides a much more useful basic text than the original edition would now do, in relating the new Use Classes to the previous Use Classes. The Supplement describes and discusses the new Use Classes (and contains numerous cross-references to the main text of the book).

The difference in price between the stand-alone Supplement and the Revised Edition of the book (including the Supplement) is only £35. So if you have already ordered the Supplement alone (for £15), or the Supplement plus webinar booking (for £40), but you now wish to upgrade your order to include the Revised Edition of the book (with bound-in Supplement), in place of the Supplement alone, you can do so by paying only £35 more. But you will need to do so almoast immediately, before orders are dispatched. Bath Publishing have kindly agreed to process any revised orders, on receipt of the extra £35. So if you wish to upgrade an existing order, you should send an email to info@bathpublishing.co.uk and they'll take it from there.

However, if you have not yet placed an order at all, the best route is go is through the Bath Publishing website (using the link on the left-hand side of this page). There is still time to place an order for either the Revised Edition (with Supplement bound in) or the Supplement alone, and to book for the webinar, if you have not yet done so.

Purchasers of the digital edition of the book (or supplement) should receive this by 26 November, and the printed edition should also become available soon afterwards. So you shouldn’t have to wait too long now for your order to arrive.

© MARTIN H GOODALL

High Court challenge to GPDO & UCO fails

The legal challenge by ‘Rights: Community: Action’ to the amendments made to the GPDO and the Use Classes Order was dismissed in a judgment of the Divisional Court this morning.

I haven’t managed to get hold of the judgment itself yet, but I understand that the Court dismissed every ground on which the claimants sought to impugn the Secretary of State’s action in making the Statutory Instruments which were under challenge.

Lewis LJ is quoted as having pointed out in his judgment that the role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. It is not the role of the court to assess the underlying merits of the proposals.

Holgate J is reported to have added that none of the Statutory Instruments in question constituted a plan or programme setting the framework for future development consents, so there was no requirement for strategic environmental assessment.

The Court also held that the claimants had no realistic prospect of establishing that the Secretary of State had failed to take account of the public sector equality duty set out in the Equality Act 2010.

The Court seems to have been persuaded that the current coronavirus crisis does excuse ministers from strict compliance with a promised consultation process. The Court also seems to have accepted that the government’s decision to enlarge PD rights in this way was prompted by a legitimate desire to promote development in the difficult economic circumstances that had been caused by the pandemic.

For all these reasons, the claim for judicial review was therefore dismissed.

The claimants’ solicitors expressed disappointment on behalf of their clients, noting that whilst the judges had recognised the very significant environmental impact that the changes arising from these two Statutory Instruments will have, the Court had reached a conclusion on the technical requirements of the Strategic Environmental Assessment Directive that puts these changes outside the scope of the kind of plans or programmes that require assessments. Their clients were nevertheless firmly of the view that the Directive does apply to these SIs and so they would be seeking permission to appeal that ground.

© MARTIN H GOODALL

USE OF LAND book - REVISED Edition

When I recently wrote the new Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts, it was also my intention to make some minor amendments to update the text of the book itself, but in practice I found myself carrying out a rather more extensive revision of the text than I had originally intended, so that rather than a mere ‘updated’ edition, we are now going to publish a Revised Edition (with Supplement), which not only flags up the old and new Use Classes in the original text, but also brings various other legislative references up to date, and contains some new material and re-cast or re-written text.

In order to make proper sense of the Supplement describing and discussing the new Use Classes (which contains numerous cross-references to the main text of the book), the Revised Edition of the book itself will provide a much more useful basic text than the original edition would now do. It is solely for that reason (and not because I want to sell a lot more books) that I would strongly recommend readers to order the Revised Edition of the book, with the Supplement bound in, rather than just buying the Supplement alone.

The difference in price between the stand-alone Supplement and the Revised Edition of the book (including the Supplement) is only £35, which when you think about it is a remarkable bargain for such a useful book.

If you have already ordered the Supplement alone (for £15), or the Supplement plus webinar booking (for £40), you may now wish to upgrade your order to include the Revised Edition of the book (with bound-in Supplement), in place of the Supplement alone, by paying only £35 more. Bath Publishing have kindly agreed to process any revised orders, on receipt of the extra £35. So if you wish to upgrade an existing order, you should send an email to info@bathpublishing.co.uk and they'll take it from there.

I should emphasise though that if you have not yet placed an order at all, the best route is go is through the Bath Publishing website (using the link on the left-hand side of this page). There is still time to place an order, and to book for the webinar, if you have not yet done so.

We hope to go to press very shortly, and our aim is that, at the very least, you should have received the digital edition of the book (or Supplement) by 26 November, but we have been working to extremely tight deadlines, and so the production schedule has necessarily been squeezed. So it’s fingers crossed, but you certainly won’t have to wait too long for your order to arrive.

© MARTIN H GOODALL

GPDO – Yet more amendments

The government has been promising for some time to introduce a minimum space standard for new residential units created as permitted development under the GPDO. The Secretary of State also announced recently that he would extend the temporary PD right for hot food takeaways. Both of these changes to the GPDO have now been made by the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020 [SI 2020 No.1243] which were made on 9 November.

With effect from 6 April 2021, the GPDO will not permit any residential conversion where the gross internal floor area is less than 37 square metres in size, or which does not comply with the nationally prescribed space standard issued by the Department for Communities and Local Government on 27th March 2015. (The adequacy of natural light had already been added to the matters requiring prior approval.)

It is noteworthy that, whilst various other issues (including the adequacy of natural light) are listed as matters that require prior approval, and are therefore dependent on the LPA notifying the applicant of its determination of the prior approval application within 56 days, the absolute prohibition on development that does not comply with the stated space standards does not depend on the determination of any prior approval application, but will apply even in those cases where a development could otherwise proceed in the event of the LPA’s failure to determine the prior approval application within (in the case of Part 3) the 56-day period. The space standards apply to all permitted development under the GPDO involving the creation of new dwellings, including for example the various forms of development permitted under Part 20.

The other point that readers will immediately spot is that there is quite a generous window of opportunity for developers to put forward proposals for ‘rabbit hutch’ or ‘broom cupboard’ dwellings before the space standards kick in. Although this provision is stated to come into force on 6 April 2021, the transitional provisions define the precise timing by reference to the ‘prior approval event’. These transitional provisions are one the finest examples of gobbledygook that I have ever encountered. In fact, the convoluted way in which the transitional provisions are set out in Regulation 12 deserves some sort of booby prize for outstandingly opaque legislative drafting.

Boiled down to their bare essentials, what they mean is that the provisions outlined above will not apply to a development in respect of which a prior approval application is made before 6 April 2021 (irrespective of the fact that the prior approval or expiry of the 56-day period, in the case of Part 3, will occur after that date); nor will they apply where prior approval is granted on appeal, where the appeal against a refusal of prior approval is lodged within the 6 months following the date of refusal [or non-determination] of a prior approval application that had been made before 6 April 2021. This relates to prior approval applications for residential development under both Part 3 and Part 20.

As mentioned above, the temporary change of use to use as a hot food take-away under Class DA of Part 4 has been extended [by Regulation 5] for an extra year, from its previous expiry date of 23 March 2021 to 23 March 2022. As I pointed out when originally reporting on this temporary use right, it does not override any condition in a planning permission that precludes use as a hot food takeaway.

One other change worth noting is set out in Regulation 6, which comes into force on 3 December 2020. This amends the PD right for demolition of buildings under Part 11, Class B. Apart from excepting from this PD right the demolition of any unlisted building in a conservation area, Part 11 did not previously exclude the demolition of any particular type of building, but this amendment now excludes from the PD right under Class B of Part 11, the demolition of any building that is used, or was last used, for the purpose of—

(i) a concert hall;
(ii) a venue for live music performance; or
(iii) a theatre.”

These are all sui generis uses, but the exclusion has not been extended to the demolition of a cinema, bingo hall or dance hall, or any of the other sui generis uses listed in Article 3(6) of the UCO.

As with other PD rights, the transitional provisions in Regulations 12 provide that where the prior approval application that is required under Part 11 is made prior to 3 December 2020 the exclusions noted above will not apply; nor will they apply where prior approval is granted on appeal, where the appeal against a refusal of prior approval is lodged within the 6 months following the date of refusal [or non-determination] of a prior approval application that had been made before 3 December 2020. [This prior approval does not relate to the principle of demolition, but only to the method of demolition and any proposed restoration of the site. Except in strictly limited circumstances, specified in the GPDO, commencing demolition before a prior approval application has been submitted, and determined, is not permitted development, and may lead to enforcement action being taken.]

© MARTIN H GOODALL

UPDATED Use of Land Book and Webinar

In a blog post in July, I briefly outlined the important changes to the Use Classes Order that were due to take effect on 1 September. As I explained at the time, this was only a first stab at the subject, and I have now completed a much more thorough examination of the changes and their practical effect, in the form of a Supplement to The Essential Guide to the Use of Land and Buildings under the Planning Acts, which is due to be published shortly.

The previous Use Classes will remain relevant until well into next year, and so this Updated Edition of the book will continue to be an essential resource for everyone concerned with the planning aspects of the use of land buildings. A complete new edition of the book would be premature at present, because there are clearly important further changes still to come, but I have taken the opportunity to update the main text of the book to reflect the recent changes and to flag up their relationship to the previous Use Classes.

Readers can choose from several options in buying this important new material. For the most complete coverage of the subject, I would recommend the purchase of the Updated 1st Edition of the book, which comes complete with the bound-in Supplement. For the same price as the original edition (£50.00), this is an excellent bargain. If you really don’t want to replace your (now out-of-date) First Edition of the book, then you can buy the Supplement alone for £15.00, but this means you won’t have access to the updated text of the main book.

Whichever option you choose, another absolute bargain will be available in the form of a Webinar (via Zoom) on the UCO changes, to be broadcast on Thursday, 26 November from 10.00 to 11.30 a.m. You can book for the Webinar, as well as buying the Updated 1st Edition of the book, with bound-in Supplement, for only £75.00. (This means that you’ll pay only £25.00 to attend the Webinar.) If you really don’t want the updated edition of the book, you can book for the Webinar, and still received the Supplement separately for a price of £40.00 (which again means paying only £25.00 for the webinar).

The topics covered in the Supplement, which will also be discussed in the Webinar are:

• the new sui generis uses
• the new Use Class E
• the new Use Classes F.1 and F.2
• transitional provisions and other changes
• some problems of interpretation
• the effect on Permitted Development

There will be an extended Q&A session at the end of the Webinar, to enable participants to put questions to me and to my colleagues from Keystone Law’s Planning Law Team on the practical effect of the UCO changes.

All Webinar delegates will receive a recording of the webinar with an office licence, so everyone in your team can watch it later.

If you don’t want to attend the Webinar, you can still buy either the Updated 1st Edition of the book (complete with bound-in Supplement) for £50.00, or the Supplement alone for £15.00

Ordering and booking are really easy. All you need do is to click on either the 'Pre-order' or 'Book Now' buttons in the left-hand margin of this page, then read more and place your order.

© MARTIN H GOODALL

LPA bitten by 56-day rule

In my book, A Practical Guide to Permitted Changes of Use, I stressed the absolute necessity of an LPA’s notifying their determination in respect of a prior approval application within the time limit laid down (56 days in the case of Part 3), and I carefully explained the detailed rules for establishing both the start date and end date of the 56-day period. Yet some LPAs still seem to get it wrong, especially if a public holiday occurs just after the application is received.

Just to remind you, there are no dies non for the purpose of calculating the 56-day period. The 56-day period (and similar time limits for determining other prior approval applications under the GPDO) continue uninterrupted throughout weekends and public holidays, and it is essential that LPAs should take this into account when working out how long they’ve got in which to make a determination and to communicate it to the applicant.

I was recently sent an appeal decision in Wellingborough [3248384] in a case where the prior approval application under Part 3, Class R had been delivered to the LPA by hand at 10.07 a.m. on Christmas Eve. It was deposited in a letter box for incoming mail at the council’s office. However, the letter box had been emptied earlier that morning, and was not then opened again until 2 January. At the time of delivery, the council’s office was, nevertheless, open for business. It closed for Christmas at 4.00 p.m. that day. The Council sought to argue that the application should be deemed to have been received on 2 January, not 24 December, and that the 56-day period should be calculated accordingly.

Their contention was that this office is only accessible to the public by appointment, and that if customers wish to drop off planning application forms, documents or samples, they are requested to call the planning department on the relevant phone number. Furthermore, they said, the Council’s Christmas opening hours were displayed on the letter box and also advertised on the Council’s website throughout December, making it clear that the council’s offices were closed from 4pm on Christmas Eve to 1 January 2020, and would not re-open until 2 January.

Rules relating to the delivery of documents outside a council’s business hours relate only to delivery by electronic means. [For those rules, see Article 2(9) of the GPDO and section 336(4A) of the 1990 Act, summarised in paragraph 13.8.1 of Chapter 13 in the Third Edition of my book.] There are no rules in the GPDO governing the physical delivery of documents at times when the council’s offices are closed, but this does seem to be a ‘grey’ area (unless someone can remind me of a general rule as to the service of documents that would cover this). Subject to that parenthetical proviso, it seems to me that the legal position might not have been entirely clear if (in this case) the physical delivery of the prior approval application had been made by depositing it in the council’s letter box at, say, 4.15 p.m. on Christmas Eve, after the office had closed. However, that point did not arise in this case, because delivery in the council’s letter box took place almost six hours before the office closed for the holiday.

The Inspector was entirely clear in his finding that there was nothing to prevent or prohibit the applicant from hand posting the application in the letter box at the council’s office on Christmas Eve. Responsibility rested with the council to ensure that applications it receives, including those received immediately prior to a holiday period, are processed within the statutory time limit. Weekends and bank holidays or other public holidays did not ‘stop the clock’, nor could it be suspended during the extended closure of the council’s office in this case. Day 1 of the 56-day period in this case was therefore 25 December, and the council had accordingly failed to notify the applicant as to whether prior approval was required or was given or refused within 56 days of its having received the application on 24 December.

The Inspector nevertheless pointed out that the proposed development could only lawfully proceed if it was in fact permitted development having regard to the relevant conditions and limitations imposed on the planning permission granted by the GPDO. There appears, however, to have been no contention on the LPA’s part that the development would not be compliant with the restrictions, limitations or conditions applying to Class R. Furthermore, (due to the council’s being out of time to determine the prior approval application) it was no longer necessary to consider whether prior approval as to the transport and highways, and noise impacts of the development would or should be required.

The appellant applied for, and was granted, a full award of costs. The appellant had sought on at least two occasions to persuade the council that it was out of time, but the council persisted in denying this. In the circumstances, it was unlikely that the council would have granted an LDC if the appellant had made a section 192 application. So it was clear that the applicant had no viable option but to appeal under section 78, despite having taken all reasonable steps to avoid such a situation. As a result, the applicant had been put to the cost of an appeal that should have been avoided by the LPA’s acceptance that the 56-day period had elapsed. This amounted to unreasonable behaviour resulting in unnecessary or wasted expense, and an award of costs was therefore justified.

This should be an object lesson to all LPAs. In order to avoid running out of time for determining a prior approval application, they should make a working assumption that physical delivery of an application (discovered in their letter box on returning to the office after a weekend or public holiday) was effected before the closure of the office for the weekend or before that holiday period, and ensure that the timescale within which the application must be determined is calculated on that basis, so that the application is in practice determined within that shortened period.

© MARTIN H GOODALL

Legal challenge to GPDO and UCO changes moves forward

The High Court (Holgate J), has directed that this action (on which I reported on 27 August) will be heard in a “rolled-up” hearing in the first half of October. This means that the Court will deal with both the application for leave to proceed and with the substantive claim at the same time. This is a procedure that is sometimes adopted in cases of urgency.

I did wonder whether this case might be thought to be of sufficient importance to be heard by a Divisional Court, rather than by a single judge, and this is indeed what has been decided. One advantage of this (for both sides) is that if the case is decided by a strongly constituted Divisional Court, the losing side may possibly be able to appeal under the ‘leap-frog’ provision direct to the Supreme Court, without first having to pursue an appeal through the Court of Appeal.

The claimant also sought confirmation from the Court that this case would be governed by the Aarhus Convention (which limits the costs that can be awarded against a losing claimant in an environmental case), and the Court has confirmed that this case will be covered by the convention.

In view of the early substantive hearing of this case, the claimant has decided not to pursue its original application for interim relief, but at the hearing it will simply seek the final relief which has been claimed.

In the meantime, the offending SIs have been ‘prayed against’ in parliament (which is parliamentary language for having the matter debated). This will at least give opposition parties a chance to voice their concerns about this radical new subordinate legislation, although the government’s substantial majority will ensure that these political objections will be brushed aside.

The legal challenge to the legislation is far more serious, and the grounds on which this challenge is based raise important legal issues, especially in relation to the failure to carry out a Strategic Environmental Assessment. The alleged failure to take proper account of the responses to consultation, or to consider the government’s own specialist advice, also raises a serious Wednesbury issue.

I am sure that I am not the only lawyer who is salivating at the prospect of a juicy legal battle in October.

UPDATE: The case was heard by a two-judge Dvisonal Court last week, and (as is usual in such cases) judgment was reserved. I am not aware of any estimate as to how soon judgment may be exepected.

© MARTIN H GOODALL

Application fees for prior approval under Part 20

The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2020 (SI 2020 No.936), which were made on 5 August, came into force on 2 September. Readers will recall that the new fees for prior approval applications were announced some time ago, so these new fees were entirely as expected. In the event, the potential window of opportunity to bang in a prior approval application under the new PD rights without having to pay a fee lasted for only one day. I wonder if any lucky applicants managed to get their applications in on 1 September, and so avoided having to pay the application fee?

The fee for a prior approval application under Part 20 (construction of new dwellings) where the number of new dwellings proposed is 50 or fewer is £334 for each new dwelling; but where the number of new dwellings proposed by the development exceeds 50, the fee is £16,525, plus an additional £100 for each new dwelling in excess of 50, subject to a maximum in total of £300,000.

As I mentioned in an earlier post, there is a ‘free go’ for a second application under Part 20 within 12 months, in circumstances similar to those applying to planning applications; but this ‘free go’ does not extend to prior approval applications under other Parts of the Second Schedule to the GPDO.

© MARTIN H GOODALL

GPDO and UCO amendments under challenge

I am grateful to a correspondent for drawing to my attention an application for Judicial Review in respect of the recent amendments to both the General Permitted Development Order and the Use Classes Order. Solicitors acting for “Rights: Community: Action Ltd” [Keystone Law are not acting in this case] sent a letter before action to the Secretary of State on 21 August notifying him of the legal grounds of a proposed challenge to this subordinate legislation. If these Statutory Instruments are not withdrawn or suspended, the Claimant will challenge their lawfulness and will seek a declaration that the SIs are unlawful, and an order quashing them.

As someone who is strongly pro-European, I was pleased to see that one of the principal grounds of challenge is the government’s failure to comply with “the Strategic Environmental Assessment Directive” and the Environmental Assessment of Plans and Programmes Regulations 2004. The second ground of challenge is the government’s failure to comply with section 149 of the Equality Act 2010, which created “the public sector equality duty”. The potential claim is based, thirdly, on the government’s failure to take account of consultation responses and other material considerations, both by failing conscientiously to consider consultee responses and by failing to take into account the government’s own expert advice. Thus, it is alleged, in closing his mind to the issues raised regarding these proposed reforms, the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed reforms.

In their letter before action, the claimant’s solicitors require the Secretary of State to suspend the coming into effect of the SIs, pending the required SEA, impact assessments and Parliamentary debate. If he does not, the Claimant proposes to seek an urgent interim order suspending the operation of the SIs until the legal challenge is resolved.

I am led to understand that an application for leave, settled by leading and junior counsel in Landmark Chambers, has now been lodged in the High Court. At this stage, I am making no prediction as to whether permission to proceed will be granted by the High Court; and I certainly would not attempt to forecast the ultimate outcome of this litigation in the event that the claimant obtains the leave of the Court. I shall nevertheless follow the progress of the action with great interest.

© MARTIN H GOODALL

Ghastly extensions

I suppose I’d better summarise the remaining new PD rights for extensions to existing buildings that come into effect next week (on 31 August) although, as you may already have gathered, I am distinctly unenthusiastic about them, as are many other planning professionals. These new PD rights comprise Class AA in Part 1, and Classes AA, AB, AC and AD in Part 20 of the Second Schedule to the GPDO. They were introduced by The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (SI 2020 No.755).

[There have already had to be some corrections to the provisions to Class A of Part 20. I don’t propose to discuss these here. They can be found in Article 4(2) of the No.2 amendment order.]

In brief, the additional PD rights are as follows:

Part 1

AA - Construction of an extension of up to two extra storeys on an existing dwellinghouse comprising two storeys or more, or one extra storey on a bungalow.

Part 20

AA - Construction of up to two extra storeys of flats [number unspecified, and therefore apparently unlimited] immediately above existing premises that are not less than three storeys in height used within Use Classes A1* (shops), A2* (financial and professional services), Class A3* (restaurants and cafes), Class B1(a)* (offices) or as a betting office, pay day loan shop or launderette, or which are in mixed use as a dwellinghouse or dwellinghouses (Class C3) together with one of those uses. [*These commercial Use Classes continue to apply for the purposes of the GPDO, notwithstanding their abolition and replacement by Class E in the UCO.]

AB - Construction of up to two extra storeys of flats [number again unspecified, and therefore apparently unlimited] on an existing terrace building (i.e. a building which is not detached) of two or more storeys, used in the same way as described above, or one extra storey on such a building that currently comprises only one storey.

AC - Construction of up to two extra storeys of [an unspecified number of] flats above a single C3 dwellinghouse of two or more storeys in a terrace, or one extra storey on such a dwellinghouse that currently comprises only one storey in a terrace.

AD - Construction of up to two extra storeys of [an unspecified number of] flats above a single detached C3 dwellinghouse of two or more storeys, or one extra storey on such a dwellinghouse that currently comprises only one storey

In relation to the number of storeys, any floors below ground level and any existing loft conversion or roof extension must be excluded in counting the qualifying number of storeys for the purposes of Class 20. It follows from this that the existing accommodation in the roof must be counted as taking up one of the storeys permitted in the upward extension of the building.

In all cases in Part 20, the permitted development includes (within appropriate limits) necessary engineering operations, replacement or provision of plant, and the construction of storage, waste or other ancillary facilities.

However, before gung-ho building owners and developers start charging off in all directions with proposals for ugly and unneighbourly extensions, we should all be aware of the prohibitions that restrict the scope for such extensions.

Those applying to Class AA of Part 1 differ somewhat from the restrictions that apply under Class 20. The following is not a complete list of the prohibitions in paragraph AA.1 but, among these, development under Part 1, Class AA is not permitted :

- if the existing dwelling is situated within a Conservation Area, an Area of Outstanding Natural Beauty, the Broads, a National Park or a World Heritage Site (“Article 2(3) land”) or a Site of Special Scientific Interest (SSSI) [Note that, whilst in this case these prohibitions do not extend to a listed building or a building within its curtilage, the provisions of the Listed Buildings Act would nevertheless apply, and any such development would undoubtedly require Listed Building Consent, which in many cases it would be unlikely to get];

- if permission for its use as a dwellinghouse was granted only by virtue of Class M, N, O, P, PA or Q of Part 3;

- if it was constructed before 1st July 1948 or after 28th October 2018. The building must have been in its existing qualifying use on 5 March 2018,so if that use permanently ceased before that date, it does not qualify. [Note that “in use” in this context would, in my view, include a ‘dormant’ use, i.e. a use which was no longer active on that date, but in respect of which the existing use right for planning purposes had not been lost.];

- if, at any time following its original construction, the existing house has been enlarged by the addition of one or more storeys (whether with or without planning permission, or in reliance on PD under Class AA or otherwise)

There are also strict height limitations, which are too complicated to summarise here. The extension can only be built above the principal part of the dwellinghouse (i.e. the main part of the dwellinghouse excluding any front, side or rear extension of a lower height, whether this forms part of the original dwellinghouse or is a subsequent addition).

[This PD right is subject to a prior approval application first being made in respect of the matters listed in paragraph AA.2. I am not going discuss the details here, nor have I got time to run through the other conditions that apply.]

Development under Classes AA, AB, AC and AD of Part 20 is not permitted if the site is:

(i) article 2(3) land [see above];
(ii) a site of special scientific interest;
(iii) a listed building or land within its curtilage;
(iv) a scheduled monument or land within its curtilage;
(v) a safety hazard area;
(vi) a military explosives storage area; or
(vii) land within 3 kilometres of the perimeter of an aerodrome.

Development under these Classes is also precluded if the works exceed the permitted internal and external height limits, or if the permitted engineering operations exceed the specified limitations both as to their nature and as to their physical extent.

These PD rights are subject to strict conditions, the most important of which is the requirement to make a prior approval application. In addition to the ‘usual’ matters that may require prior approval (with which we have all become familiar under Part 3), other matters that will require attention include:

- the provision of adequate natural light in all habitable rooms of the new flats;
- impact on the amenity of the neighbouring premises including overlooking, privacy and the loss of light;
- whether, because of the siting of the building, the development will impact on a protected view identified in the Directions Relating to Protected Vistas dated 15th March 2012 issued by the Secretary of State,

also [in the case of Classes AA and AB only but not AC and AD]:
- impacts of noise from any commercial premises on the intended occupiers of the new flats;
- impacts of the introduction of, or an increase in, a residential use of premises in the area on the carrying on of any trade, business or other use of land in the area;

Any development under Classes AB, AC and AD is permitted subject to the condition that the development must not include a window in any wall or roof slope forming a side elevation of the building. In the case of Classes AC and AD, the materials used in any exterior work must also be of a similar appearance to those used in the construction of the exterior of the existing building and, following the development, the roof pitch of the principal part of the building must be the same as the roof pitch of the principal part of the existing building.

There is a condition that the development permitted must be completed within a period of 3 years starting with the date prior approval is granted. As in other cases, approval of construction management and methods will be required, including mitigation of construction noise, dust, vibration and traffic on occupiers of the building and adjoining owners or occupiers. Notice of completion of the development must also be given to the LPA by the developer. Following the development, every dwelling in the building must remain in use as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

The procedure for processing and determining the prior approval application is largely similar to the process that has become familiar over the past seven years. No time limit is stated in Part 20, but Article 7 provides that where no period is specified for the determination of the prior application, it is to be determined within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or within such longer period as may be agreed by the applicant and the authority in writing. However, in contrast with the provisions in Parts 1, 3, 6 and 16, there is no default provision that would entitle the developer to proceed with their development in the absence of determination within the 8-week period. The only remedy open to the applicant in these circumstances is an appeal against non-determination under section 78(2) of the 1990 Act.

I have deliberately confined this note to the main points, and have omitted some of the legislative detail. Readers should therefore refer to the actual text of SI 2020 No.755 for a complete picture of this legislation.

© MARTIN H GOODALL

Wait and see

I am not getting excited about today’s publication of the Planning White Paper. Ignore all the overblown ministerial hyperbole and spin, and the overdramatic reactions that this has prompted. We shall need to read and digest the actual proposals, and try to understand what their real impact is likely to be.

There is a 12-week consultation period, which takes us to early November. The government must then, at the very least, go through the motions of considering responses. This will take another few weeks, although no doubt they will cut this down to the shortest interval they think they can get away with before ploughing on with their proposals regardless. The government will then have to introduce primary legislation to change the Development Plan system and to scrap and replace CIL with a nationally imposed development levy mechanism, not to mention various other changes to the 1990 Act. They will be doing well if they can introduce a Bill before the Christmas recess.

So we will be into the New Year before parliament gets to grips with the legislation. It is too early to say whether the Bill will wend its way through parliament in the usual manner or whether it will be fast-tracked in order to get to Royal Assent as fast as possible. This legislation may well prove to be controversial (even on the Tory backbenches), so the government may not get away with trying to railroad it through the legislature.

The bottom line is that it will be the Summer of 2021 before the dramatic changes the government is promising can actually be implemented. In practice, I foresee a potentially rough ride for the government over this, because they are going to get opposition not only from the usual suspects, but from their own supporters in Middle England (the stalwarts of the constituency Conservative Associations), which will feed through to concern on the Tory backbenches.

So, as the heading of this article says………… wait and see.

© MARTIN H GOODALL

Permitted development to demolish and replace buildings

As those readers who have been keeping up to date with the plethora of recent amendment orders and regulations will be aware, by 31 August we shall have (in the order in which they will appear on the printed page) the following Classes of permitted development in the recently introduced Part 20 of the Second Schedule to the GPDO - Class ZA, Class A, Class AA, Class AB, Class AC and Class AD. Then there is also the new Class AA in Part 1.

Today, I am going to focus solely on the last of these new PD rights to be introduced. This is Class ZA, which was brought into being by the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 SI 2020 No.756, which was made on 20 July and will take effect on 31 August, at 10.00 a.m. precisely.

The development that will be permitted by Class ZA comprises two elements, the first of which encompasses the demolition of one or other of any building comprising a single purpose-built detached block of flats, or, alternatively a single detached building, comprising premises established for office use falling within Class B1(a), for research and development falling within Class B1(b) or for a light industrial process falling within Class B1(c) of the Schedule to the 1987 Order, or any combination of these three B1 uses. [To answer a point that one correspondent raised with me, “demolition” in this case must surely mean complete demolition of the entire building, bearing in mind the definition of “Building” in Article 2, to which I draw attention below.]

The second element of the development permitted comprises the construction of a purpose-built detached block of flats, or a single purpose-built detached dwellinghouse. (In either case, this means built as such and remaining as such.) For the purpose of carrying out this development, Class ZA permits operations reasonably necessary for the demolition and construction (which may include the installation of a basement or cellar in the new building, whether or not there is one in the old building) and works for the removal of plant servicing the old building, for the disconnection of services from the old building, for the removal of any means of access to the old building, for the removal of storage and waste from the old building, for the installation of plant to service the new building, for the installation of services to be connected to the new building, as well as works to enable access to and from the new building (including a fire escape), for the construction within the new building of storage, waste or other ancillary facilities to support the new building and the use of scaffolding and other temporary structures to support these operations (during a period starting with their installation no earlier than one month before the beginning of those operations, and ending with their removal no later than one month after the completion of those operations. [It occurs to me that one would not usually expect this level of detail to be required in a planning permission, so it is slightly puzzling that the draftsman of these provisions felt that it was necessary in this case.]

[It should be noted that this PD right does not confer any right to demolish a single detached dwellinghouse as such; and, although you can build a block of flats containing (in theory) an unlimited number of flats, you can in the alternative build only one detached dwellinghouse, even though there might potentially be room on the cleared site for several houses.]

The following definitions specifically applying to Class ZA should be borne in mind. First, this PD right applies only to a whole building and not to part only of a building (and the definition of a “building” in Article 2 has been changed to this effect so far as it applies to Class ZA). “Development” includes any change of use from the use of the old building to the use of the new building within Class C3 in the form in which this Use Class existed on 12 March 2020. [This is another provision which really ought not to have been necessary, as what is authorised is operational development, and so the use of the new building would in any event be governed by section 75 of the 1990 Act.] The “old building” and “new building” respectively mean the building proposed for demolition and the building proposed as replacement [another statement of the absolutely bl***ing obvious which was surely unnecessary], and “services” means water, drainage, electricity, gas, and other services to the extent reasonably necessary for the new building to function as a block of flats or as a single detached dwellinghouse. [Well, who’d have thought that’s what it meant?]

Some of the aspects of development not permitted by Class ZA represent in effect qualifying criteria which, if they are not met, take the development outside the scope of the GPDO. The old building must have been constructed before 1990, and it must still have been in existence on 12 March 2020. [“Built” is not defined, but I think we may take it that the old building must have been substantially completed (as per Sage) no later than 31 December 1989.] The footprint of the old building (i.e. the total area of ground covered by it) must not exceed 1,000 square metres, and the height of the highest part of the roof of the old building above ground level (not including plant, radio masts and antennae) must not be greater than 18 metres at any point.

[I am not sure what purpose is served by the requirement that the old building must still have been in existence on 12 March 2020. The PD rights under Class ZA must surely depend on the continued existence of the old building until prior approval has been granted. If the old building has already been demolished at a date after 12 March, is it implied that the right to erect a new building within the limits set in Class ZA can still be permitted development? I find it hard to believe that this is really what was intended. ]

One particularly important criterion is that the old building must have been vacant for a period of at least 6 months immediately prior to the date of the application for prior approval. However, if the old building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the old building stands, and if it would be practicable to secure safety or health by works of repair or works for affording temporary support, then this too is a disqualification. But keeping the old building vacant does not of itself count as action or inaction.

[The position regarding agricultural tenants is protected (see below), but there does not seem to be any other means of preventing the process of ‘winkling’ by unscrupulous landlords.

A correspondent has correctly raised with me how the LPA is to know, or be able to confirm that the building to be demolished has been vacant for at least six months, when there is no requirement for the applicant to supply any evidence to support this assertion (or assumption). How is the LPA to ascertain when it was vacated? I suppose rating records might be an indication. The same point could potentially arise with regard to the date of construction of the existing building. I think it would perhaps be slightly easier to ascertain whether the building had been completed no later than 31 December 1989. Building Control records should enable this to be confirmed.]

The footprint of the new building (defined as mentioned above) must fall wholly within the footprint of the old building. Development is disqualified if any part of the footprint of the new building falls outside those limits. Furthermore, no part of any exterior wall of the new building must be nearer the highway than any exterior wall of the old building.

The new building must not have more than two storeys more than the old building. Where the new building has additional storeys compared with the previous building the floor to ceiling height of any additional storey in the new building, measured internally, must not at any point be greater than whichever is the lower of the floor to ceiling height, measured internally, of any storey in the old building, or 3 metres.

There is also an overall limit on the height of the new building; it must not exceed whichever is the lower of 7 metres above the height (not including plant) of old building, or 18 metres in total, although plant, radio masts and antennae on the new building can be left out of account for this purpose. The height of any plant on the roof of the new building as measured from the lowest surface of that roof must not be greater than the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the old building.

There are, of course, various other prohibitions (as you would expect if you are already familiar with similar PD rights elsewhere in the GPDO). Development is not permitted by Class ZA if land covered by, or within the curtilage of, the old building is occupied in any part under an agricultural tenancy (unless the express consent of both the landlord and the tenant has been obtained). It is not permitted if it is or forms part of a Conservation Area, an AONB, the Broads, a National Park or a World Heritage Site [Article 2(3) land, which also includes land specified for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 – no, me neither].

Bearing in mind the disqualification of a building situated within a Conservation Area, it is not clear why the draftsman should also have thought it necessary to prohibit the demolition of an unlisted building in a conservation area (“relevant demolition” for the purposes of section 196D of the Listed Buildings Act).

Development under Class ZA is also prohibited if the site is or forms part of a Site of Special Scientific Interest, of a listed building or land within its curtilage, of a scheduled monument or land within its curtilage or if it is or forms part of a safety hazard area or military explosives storage area, or is within 3 kilometres of the perimeter of an aerodrome.

All this is, of course, subject to a condition requiring a prior approval application to be made before any of this development commences. The matters requiring prior approval in this case are:

(a) transport and highways impacts of the development;
(b) contamination risks in relation to the new building;
(c) flooding risks in relation to the new building;
(d) the design of the new building;
(e) the external appearance of the new building;
(f) the provision of adequate natural light in all habitable rooms of each new dwelling in or comprising the new building;
(g) the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light;
(h) impacts of noise from any commercial premises on the intended occupiers of the new dwellings;
(i) the impact on business and new residents of the development’s introduction of, or increase in, residential use in the area in which the development is to take place;
(j) the impact of the development on heritage and archaeology (which obliges the LPA, so far as they consider reasonably practicable, to consult any bodies that they consider to have heritage and archaeological expertise relevant to their functions under Part 3 of the Act and the GPDO);
(k) the method of demolition of the old building;
(l) the plans for landscaping of the development, including the planting and maintenance of shrubs and trees; and
(m) any air traffic and defence asset impacts of the development, and any impact that, because of the siting of the new building, the development will have on a protected vista identified in the Directions Relating to Protected Vistas dated 15 March 2012 by the Secretary of State, unless no part of the new building (including plant, radio masts and antennae) occupies airspace not occupied by the old building (including plant, radio masts and antennae).

[The matters requiring prior approval still do not specifically include the adequacy of the residential accommodation in terms of the floor area of each dwelling, room sizes, etc. but ”the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light” does for the first time introduce some additional elements of residential amenity into the equation, although only practical experience of the operation of these provisions will show to what extent this might be stretched to embrace such considerations as the adequacy of the new residential accommodation (in terms of size, servicing arrangements and any outside space, etc.).]

The term “commercial premises” (in sub-paragraph (h)) means any premises in the surrounding area which are normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application under, and includes premises licensed under the Licensing Act 2003 or any other place of public entertainment. I won’t repeat other definitions of terms that were explained in my last blog post, such as “air traffic and defence assets”.

Some additional requirements have been added to Part 20 regarding the information to be provided with a prior approval application under Class ZA. (In a Class ZA application, this list replaces the list of requirements that apply to other developments under Part 20.) The complete list of items required under Class ZA comprises:

(a) a written description of the proposed development, which must include details of the building proposed for demolition, the building proposed as replacement and all of the operations listed above (for both the demolition and the new build, all services, plant, etc.);
(b) a plan, drawn to an identified scale and showing the direction of North, indicating the site of the proposed development;
(c) drawings prepared to an identified scale and showing external dimensions and elevations of the building proposed for demolition and of the building scheduled as replacement, showing the direction of North and the positioning of each, together with the applicable information mentioned below**;
(d) a written statement specifying the number of dwellings in the building proposed for demolition, and the number of new dwellings proposed in the building proposed as replacement;
(e) where there is a requirement for the Environment Agency to be consulted (in Flood Zones 2 or 3, or in an area within Flood Zone 1 which has critical drainage problems and which has been notified to the local planning authority by the Environment Agency), a site-specific flood risk assessment;
(f) a written statement in respect of heritage and archaeological considerations of the development;
(g) the developer’s contact address; and
(h) the developer’s email address if the developer is content to receive communications electronically;

This information must of course be accompanied by any fee required to be paid. (To avoid unnecessary repetition, I would remind you of the much increased fees that will be payable in respect of applications under Class 20, which I explained in this blog on Wednesday, 15 July, when I drew attention to draft amendment regulations to the Fees Regs. So far as I am aware, these still remain only in draft at the time of writing , and it is uncertain whether the new scale of charges will have come into force by 1 September.)

**The information referred to in sub-paragraph (c) above, which must so far as practicable show the direction of North and also elevations is —
(a) where the building proposed as replacement is a block of flats, the position and dimensions of windows, doors and walls in the block and in each flat in the new block, and the dimensions and use of all habitable and other rooms in each flat;
(b) where the building proposed as replacement is a single house, the position and dimensions of the windows, doors and walls in it, and the dimensions and use of all habitable and other rooms in it.

The following further conditions also apply to the development:

When the developer makes the prior approval application, the procedure for dealing with such applications under Part 20 (as set out in paragraph B of that Part) applies to the application.

Before beginning the development, the developer must provide the LPA with a report for the management of the construction of the development, which is acceptable to the authority and sets out the method of demolition, the proposed development hours of operation and how any adverse impact of noise, dust and vibration and traffic on occupiers of the new building and adjoining owners or occupiers will be mitigated, the proposed use of materials, and the plans for the disposal and recycling of waste generated by the development and that in carrying out the development the developer must comply with the report.

The development must be completed within a period of 3 years starting with the date prior approval is granted, and the developer must notify the LPA of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing [which can include an email] and must include—
(a) the name of the developer;
(b) the address or location of the development; and
(c) the date of completion.

[In accordance with Article 7, the prior approval application should be determined by the LPA within 8 weeks. However, there is no right to proceed with the development in default of a determination within that period. So what has become known as “the 56-day rule” has no application here. The only remedy for non-determination within a reasonable time is an appeal under section 78(2)(a) of the 1990 Act.]

Any new dwelling created under Class ZA is to remain in use as a dwellinghouse within Use Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

[I am aware that there are multiple issues that this new PD right throws up, some of which have been raised by correspondents in response to other recent blog posts. There is, for example, no reference anywhere in Class ZA to ‘curtilage’. So, if a curtilage is to be provided this would require a separate planning permission.

There is no distinction between development in urban areas and development in rural areas. As one correspondent has pointed out, this could raise a number of issues, including scale and rural impact, which the prior approval application process does not adequately address. However, the restriction of the types of building that can be demolished to buildings in use under Class B1 or purpose-built blocks of flats does perhaps limit the scope for this type of development in the open countryside.

Like quite a few other planning professionals, I am sceptical as to the contribution that permitted development under the various Classes in Part 20 will make to the overall housing requirement. If you add together all the developments that might come forward, I doubt whether they would amount to even 1% of the annual requirement, whilst the other 99% will still have to be found through more orthodox forms of development.]

© MARTIN H GOODALL

Use Classes Order - “All change, please.”

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757), which were made on 20 July and take effect on 1 September 2020, make important changes to the already much amended 1987 Use Classes Order. The changes are quite complex, because of the need to take account of various knock-on effects and the consequent requirement to include various transitional provisions to ensure a reasonably smooth move to the new and revised Use Classes.

Parts A and D of the original Schedule to the UCO are entirely revoked, which puts an end to Use Classes A1, A2, A3, A4 and A5, and Classes D1 and D2. These are replaced by new Use Classes in Schedule 2, except for those listed below that have now become sui generis uses. Class B1 is also abolished as a separate Use Class, and is also subsumed within a new Use Class in Schedule 2. Use Class B2 remains in what is now Schedule 1, in an amended form. Rather than discussing these changes piecemeal, I will summarise the new, revised and surviving Use Classes below.

Several of the uses previously within specified Use Classes have now been added to the list of sui generis uses set out in Article 3(6). These are uses:

(p) as a public house, wine bar, or drinking establishment [formerly A4],
(q) as a drinking establishment with expanded food provision [which fell awkwardly between A4 and A3],
(r) as a hot food takeaway for the sale of hot food where consumption of that food is mostly undertaken off the premises [formerly A5]
(s) as a venue for live music performance [formerly within D2, and possibly also an ancillary use in some cases within other Use Classes],
(t) a cinema [formerly D2(a)],
(u) a concert hall [formerly D2(b)],
(v) a bingo hall [formerly D2(c)],
(x) a dance hall [formerly D2(d)].

[This has a number of potential consequences. First, where several of these uses fell under one and the same Use Class in the previous version of the UCO (such as, for example, a cinema, a concert hall, a bingo hall or a dance hall - all of which fell within Use Class D2) a change of use between any of those uses would not have been development.

Now that each of these uses is a sui generis use, a change of use from one of these uses to another use, even though it was formerly within the same Use Class will now constitute development, and will require planning permission. However, these changes do not take effect until 1 September, and so (at the time of writing) there is a five-week period in which somebody wishing to make a change of use from, say, a cinema to a bingo hall can still do so without requiring planning permission. However, it might be advisable to preserve dated documentary and photographic evidence of the change of use, and even possibly to exhibit that material to a statutory declaration recording the change of use, in order to counter any allegation in future that the change of use required planning permission and was therefore a breach of planning control. After 31 August, however, it will no longer be possible to make such changes of use without planning permission (unless they are permitted by the GPDO).

The effect that this and the other changes described below may have on permitted development under the GPDO is covered (at least for the next year) by a saving provision which I will explain later in this note.]

The former Schedule to the UCO (now SCHEDULE 1) contains the following Use Classes:

PART B

Class B2. General industrial

Use for the carrying on of an industrial process other than one falling within the uses described in Schedule 2, Class E, sub-paragraph (g).

Class B8. Storage or distribution

Use for storage or as a distribution centre.

PART C

[This part is not affected by the amendment regulations, and so does not require further summary here. Use Classes C1, C2, C2A, C3 and C4 therefore continue unchanged.]

The new SCHEDULE 2 contains the following Use Classes:

PART A (Commercial, Business and Service)

Class E. Commercial, Business and Service

Use, or part use, for all or any of the following purposes—

(a) for the display or retail sale of goods, other than hot food, principally to visiting members of the public [formerly A1],

(b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises [formerly A3],

(c) for the provision of the following kinds of services principally to visiting members of the public [all formerly within A2] —
(i) financial services,
(ii) professional services (other than health or medical services), or
(iii) any other services which it is appropriate to provide in a commercial, business or service locality,

(d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public [formerly within D2(e)].

[Although this new Use Class makes no mention of a gymnasium, the phrase “indoor sport, recreation or fitness” would appear to be wide enough to embrace such a use, which has not been specifically added to the list of sui generis uses in Article 3(6). Similarly, although swimming baths and skating rinks are specifically included in Use Class F, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. As with several other queries of this nature, I have not yet understood the ramifications of this apparent confusion.]

(e) for the provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner [formerly D1(a)],

[I cannot see why there is a need to distinguish between E(c)(ii) (which does not include health or medical services) and E(e), which comprises those services, when both are now in one and the same Use Class (Class E).]

(f) for a crèche, day nursery or day centre, not including a residential use, principally to visiting members of the public [formerly D1(b)],

(g) for—
(i) an office to carry out any operational or administrative functions [formerly B1(a)],
(ii) the research and development of products or processes [formerly B1 (b)], or
(iii) any industrial process [formerly B1(c)],
- being a use [in all three cases, as in the former Class B1] which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.

[One potentially problematic change is that the list of other uses that were formerly included in Use Class A1 (shops) are omitted. Without that listing, quite a few of those uses would not have come within the A1 Use Class, because they did not comprise or include (except as a purely ancillary use in some cases) the retail sale of goods. They included (among other uses) use as a post office, a travel or ticket agency, hairdressing, a funeral business, or a hire shop.

The new Use Class E does include “any other services which it is appropriate to provide in a commercial, business or service locality”, and it may be that all the uses formerly listed in Use Class A1 would now come within this category. If so, the new Use Class could be even wider than the Use Classes that it replaces, and might well embrace other services that one might reasonably expect to find in a commercial, business or service locality. These could include, for example, a nail bar, a tattoo parlour, a body toning salon, a tanning studio, etc. etc. If this interpretation is correct, then there is scope for a very wide range of uses that would previously have been regarded as sui generis.

On the other hand, there have in the past been appeal decisions in which it was held that a ‘weight loss centre’, a ‘body toning salon’, a ‘tanning shop’ and a ‘tattoo studio’ did not come into the category of “other services which it is appropriate to provide in a shopping area”, and it would seem to be entirely possible that planning inspectors might similarly determine in future (as a matter of fact and degree) that such uses do not properly fall within this category and therefore remain sui generis. The resulting ambiguity in the drafting of the new regulations is unfortunate, and is likely to cause difficulty for developers, building owners and the proprietors of businesses and also for LPAs.]

PART B (Local Community and Learning)

Class F.1 Learning and non-residential institutions

Any use not including residential use—

(a) for the provision of education [formerly D1(c)],
(b) for the display of works of art (otherwise than for sale or hire) [formerly D1(d)],
(c) as a museum [formerly D1(e)],
(d) as a public library or public reading room [formerly D1(f)],
(e) as a public hall or exhibition hall [formerly D1(g)],
(f) for, or in connection with, public worship or religious instruction [formerly D1(h)],
(g) as a law court [formerly D1(i)].

Class F.2 Local community

Use as—

(a) a shop mostly selling essential goods, including food, to visiting members of the public in circumstances where—
(i) the shop’s premises cover an area not more than 280 metres square, and
(ii) there is no other such facility within 1000 metre radius of the shop’s location,

[These uses were formerly within A1, and it would appear that they are also capable of falling within new Use Class E, because there is no provision that excludes the uses in new Class F.2 from alternatively, falling within Class E. The ramifications of this apparent confusion will only become apparent as the interpretation of these new provisions is explored in practice.]

(b) a hall or meeting place for the principal use of the local community,

[This use (formerly within D1(g)) would also appear to be capable of falling within new Use Class F.1, because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class F.1. Here again, I have not yet understood the ramifications of this apparent confusion],

(c) an area or place for outdoor sport or recreation, not involving motorised vehicles or firearms [formerly within D2(e)],

(d) an indoor or outdoor swimming pool or skating rink [also formerly within D2(e)]

[So far as an indoor swimming pool or skating rink are concerned, here again, this use would also appear to be capable of falling within new Use Class E (under paragraph E(d)), because there is no provision that excludes the use in new Class F.2 from alternatively falling within Class E. This is another case in which I have not yet understood the ramifications of this apparent confusion.]

You may wonder why, following the abolition of the Use Classes in Parts A and D of the former Schedule to the UCO, the new Use Classes have been designated as E, F.1 and F.2. Well, as Polonius observed, though this be madness, yet there is method in’t. As we shall see below, the former Use Classes that have been removed from the UCO will still have a ghostly after-life. So to avoid confusion with these wraith-like entities, the new Use Classes have been given entirely new designations.

The most significant effect of the recast Use Classes is to produce much larger classes of uses that are covered by each of Parts E and F (Classes E, F.1 and F.2). In accordance with Article 3(1) of the UCO, where a building or other land is used for a purpose of any class specified in Schedule 1 or Schedule 2, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land. This is slightly modified by paragraph (1A), so that (additionally) the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land. Section 55(2)(f) of the 1990 Act also continues to apply in this context.

So to take a few random examples, a change of use between a retail shop and a restaurant, a bank or building society (or any other kind of office, whether it was formerly in Use Classes A2 or B1(a)), a doctor’s or dentist’s surgery, a light industrial use or a crèche, day nursery or day centre, which are all now with Use Class E, will not constitute development and will not therefore require planning permission. Where any changes of use between these uses was formerly PD under the GPDO those permitted development rights will no longer be required, and any restrictions, limitations or conditions applying to such PD will no longer apply.

In the case of Class F.1, all the uses listed in this Use Class were formerly within Class D1, and so there is no change in that regard, except that the scope for changes of use that do not constitute development is slightly reduced, because the provision of medical and health services and use as a crèche, day nursery or day centre are no longer in the same Use Class (as they now fall within Class E).

The purpose and effect of Use Class F.2 is somewhat puzzling. Quite apart from the overlap of certain ‘community’ uses with similar uses in other Use Classes which I have noted above, it appears to be the intention that a use such as a community hall could have its use changed (in whole or in part) to a community shop, without needing planning permission.

The observations I have set out above represent only my first impression of the new provisions, and there may be other ramifications and unforeseen consequences that I have not yet identified.

Now, excuse me while I wrap a wet towel around my head to prevent my brain from overheating, and I’ll try to explain the transitional, savings and consequential provisions.

First of all, between 1 September 2020 and 31 July 2021, any references in the GPDO to the uses or use classes specified in the Schedule to the Use Classes Order are to be read as if those references were to the uses or use classes which applied on 31st August 2020 (i.e. before the UCO was amended by the current regs). If between those two dates, a prior approval application is made under Part 3 of the Second Schedule to the GPDO, or if an Article 4 Direction is made, modified or cancelled, it is the pre-September 2020 uses, use classes and definitions that are to apply to that application or to that Direction. If an Article 4 Direction is made before 1 September 2020, references in the Direction to pre-September 2020 uses or use classes are to continue to be read as references to those uses or use classes.

In the same way, if a planning application (including an application for PiP or an application for the approval of reserved matters) is made before 1 September 2020, referring to a pre-September 2020 use or use class, that application must be determined by reference to that pre-September 2020 use or use class. (There are one or two other minor transitional provisions which I don’t propose to go into here.)

On the other hand, where a building or other land is being used for the purpose Class A1 (Shops), Class A2 (Financial and professional services), Class A3 (Restaurants and cafes), or Class B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for the corresponding purpose specified in Class E (Commercial, business and service) in Schedule 2.

Most readers are no doubt aware of the provision in Article 3(4) of the UCO which provided that where land on a single site or on adjacent sites used as part of a single undertaking is used for purposes consisting of or including purposes falling within use classes B1 and B2, those classes could be treated as a single class in considering the use of that land for the purposes of the UCO, provided that the area used for a purpose falling within Class B2 was not substantially increased as a result. This provision is now replaced by a similar provision which refers to the use described in Schedule 2, Class E, sub-paragraph (g) and the modified Class B2 in Schedule 1, so that those classes may be treated as a single class in considering the use of that land for the purposes of this Order, so long as the area used for a purpose falling within Class B2, or Class B2 as modified, is not substantially increased as a result.

Now, I must take a deep breath before plunging into the No.2 and No.3 amendment orders to the GPDO, with their interesting new permitted development rights. Such fun!

ADDENDUM: When writing the blog post above, I was focusing on the amendments to the Schedule to the Use Classes Order. I should also have drawn attention to Regulation 7 of the Use Classes amendment regulations. This provides that for the purposes of the Use Classes Order, if a building or other land is being used for a purpose that, on 31st August 2020, fell within any of Use Classes A1 (Shops), A2 (Financial and professional services), A3 (Restaurants and cafes), or B1 (Business), that building or other land is to be treated, on or after 1st September 2020, as if it is being used for a purpose specified within the new Class E (Commercial, business and service).

Thus, those uses that were expressly specified as being within Use Class A1 (such as, among other things, use as a Post Office, as a Travel Agent, for hairdressing, or for the direction of funerals, etc. etc.) will definitely come within Use Class E. I am sorry that I failed to spell this out.

UPDATE (28.8.20): Two minor corrections have had to be made to the drafting of the UCO amendment regs, by the Town and Country Planning (Use Classes) (Amendment) (England) (No 2) Regulations 2020 (SI 2020 No.859) and ditto (No.3) Regs (SI 2020 No.895). The first correction relates to CIL, and preserves references to the Use Classes that applied when an LPA adopted a charging schedule. The second correction relates to a local community shop falling within Use Class F.2. The definition as originally drafted referred to the shop’s premises covering an area not more than “280 metres square”. The corrected version changes this to “280 square metres”.

© MARTIN H GOODALL

More changes to the GPDO and to the UCO

As quite a few of you will already be aware, the government has rushed out (just in time before the parliamentary recess) three new statutory instruments, two of which introduce further amendments to the GPDO. The other makes important changes to the Use Classes Order.

None of these changes comes as a surprise, as the government has been promising / threatening these changes for some considerable time. In fact, the only aspect of the timing that calls for comment is the government’s failure to get on with it earlier. These new provisions have had a gestation period that would make an elephant green with envy.

No doubt there will be numerous comments in the press about the new changes, but I would prefer to digest the details before pronouncing on them. I will blog on the new legislation in the next week or two, concentrating primarily on what these changes actually do (as distinct from the grandstanding and hyperbole that is an inevitable accompaniment in today’s government press release).

© MARTIN H GOODALL